Reaching the climate change goals set out in the Paris Agreement and pivoting away from fossil fuel dependence will require dramatic transformations in business models and supply chains, according to The Geneva Association.
The new report provides an analysis of the climate change litigation landscape, aiming to better define the boundaries of this growing global phenomenon and further understand its development and impact.
Reaching the climate change goals set out in the Paris Agreement and pivoting away from fossil fuel dependence will require dramatic transformations in business models and supply chains, as well as in everyday life.
As evidence of climate change mounts and the transition takes hold, climate liability risks are evolving, too, with climate-related litigation cases gaining in pace, increasing in volume and expanding in scope and geographical coverage.
This report by The Geneva Association, in collaboration with leading legal experts, examines the typology, backdrop and drivers of the climate change litigation landscape.
- Climate change is a source of new laws, standards and duties of care.
Specifically, the recognition of a duty of care to protect against the harms associated with climate change has given prospective litigants additional choice of grounds and has emboldened the novel use of existing laws.
International commitments of nation states coupled with political responses to climate change have prompted a large volume of new laws and regulations, such as taxes on carbon and restrictions on certain materials or processes. This leads to a higher compliance burden on companies, especially in high- emitting sectors. The enforcement of these laws and regulations can give rise to regulatory investigation, sanctions, fines or litigation. At the same time, rising standards of care and lower legal thresholds can make successful claims more likely.
Since the adoption of the Paris Agreement, climate litigation has gained pace, increased in volume and expanded in scope and geographical coverage. Between 1986 and 2020, 1,727 litigation cases have been documented worldwide. Of these, 1,308 were brought in the U.S. and more than 50% have been brought since 2015.
- Since the adoption of the Paris Agreement, climate litigation has gained pace, increased in volume and expanded in scope and geographical coverage.
Between 1986 and 2020, 1,727 litigation cases were documented worldwide: 1,308 in the U.S. and 419 in other jurisdictions and regional and international courts.12 Importantly, more than half of the total recorded cases have been brought since 2015. Three distinct waves during this period can be identified:
The first wave (pre-2007) was predominantly in the U.S. and Australia, with cases primarily against national governments to raise environmental standards.
The second wave (2007–2015) involved a surge in climate cases with expansion to European countries and courts, primarily against governments to accelerate climate policy and tortious cases against corporations for their causal contribution to climate change.
The third wave (post-2015) is characterised by the expansion of litigation to other jurisdictions, increases in volume and pace, and new types of claims. The most prominent cases involve novel causes of action and the application of established legal duties. These include shareholder actions against corporate leadership or claimants using constitutional and human rights laws to force governments and companies to adopt more ambitious climate policies.
- Climate litigation cases can be classified in a variety of ways.
Motivation (private interest cases versus strategic cases). While some claims are brought in pursuit of private interest alone, cases are increasingly designed to achieve outcomes that go beyond obtaining results for the litigant bringing the case. These so-called strategic cases seek to advance climate policies, drive behavioural shifts in key actors, and/or create awareness and encourage public debate. Litigants bringing such cases make strategic decisions about who will bring the case, where and when the case will be filed, and what legal remedy will be sought. Strategic climate litigation can also be ‘anti-climate’. These cases oppose climate change adaptation and/ or mitigation projects/policies/legislation, for example claims filed by conservationists against renewable energy producers due to threats to wildlife and biodiversity.
- 4. Governments and corporates are being targeted by a wide range of litigants in many jurisdictions, using myriad sources of legal duties.
At the time of writing, the majority of cases have been brought against governments. However, there is clear evidence that the number of lawsuits against corporate entities (particularly carbon majors) is on the rise.
Some cases brought against states seeking increased climate mitigation ambition have been successful, such as Urgenda Foundation v. State of the Netherlands, Friends of the Irish Environment v. Ireland and Ashgar Leghari v. Federation of Pakistan. To date, the most high-profile liability cases against corporates have been stayed, or are subject to a variety of jurisdictional disputes, such as People of the State of New York v. ExxonMobil Corporation, Commonwealth v. ExxonMobil Corporation and BP p.l.c. v. Mayor & City Council of Baltimore. The U.S. Supreme Court has just heard oral arguments on the latter and will determine whether the case can be heard in State or Federal Court. Even before final judgment, these cases have attracted considerable media attention.
- Climate litigation risk is being amplified by seven key factors.
1) Increased physical and transition risk; 2) increasing awareness of the climate crisis; 3) stronger climate commitments from governments, corporates and investors; 4) availability of funding for climate litigation; 5) evolving legal duties; 6) developments in climate change attribution science; and 7) the implications of COVID-19 on economic recovery and climate-related actions.
- Climate change-related litigation is a truly global phenomenon, with cross-pollination of ideas, strategies and support across jurisdictions.
This is linked to the emergence of more data and accessible global data platforms, plaintiffs using cases from different jurisdictions in novel ways, the rising number of precedent cases and a growing network within the legal community.
- Climate change disputes are also within the purview of alternative dispute resolution mechanisms.
This includes both mediation and arbitration of commercial disputes and investor-state arbitration (aka investor-state dispute settlement, ISDS). The fact that these mechanisms are generally confidential means climate change disputes resolved in these ways are difficult to examine and quantify.
This is a summary of the key findings of the report. To read the report in full from The Geneva Association, click here.